Persons III: The Multiple Faces of a Corporation’s Legal Personality
The debate over competing conceptions of juridical persons still shows life today in terms not much removed from those of a century ago. At the core of the “juridical personality” debate are two views of the critical nature of economic organizations. For one, economic organizations are property in the hands of their owners. This property might be given special qualities by the state or through contract, but it remains property all the same. The role of law was to focus on the interests of the owners or those with an ownership interest or stake in the entity. For the other, the economic organization (like a pallid reflection of the political state that gave it existence) constituted an autonomous institutional actor separable from those with an interest in it. The role of law should focus here on the entity—that is, on the collective interests constituting the entity rather than on the aggregate individual interests of stakeholders, however defined. Recent scholarship has suggested the connection between the two camps and the critical role that economic culture plays in the social acceptance of institutional personality.
The extent of the regulatory autonomy of enterprises will continue to be a significant issue. This is very different from the nineteenth or twentieth centuries. Today an economic enterprise can insulate its assets within itself, disperse its assets among enterprises—each an independent juridical person. It can exist independent of its shareholders, own itself, can exist independent of the regulation of any singular political community, choose the set of regulations to which it wishes to subject clusters of assets, for short: regulate itself. For the economic enterprise able to disperse assets and operations worldwide and access capital markets around the globe, the essential role of law of the economic organization emphasizes the ability of the multinational economic enterprise to become an autonomous and self-regulating enterprise.